IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30942

PAM MILETELLO, 

 Plaintiff - Appellant

v.

R M R MECHANICAL, INCORPORATED; SANDRA BELLGARD 

MILETELLO, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Louisiana

Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

This case is a dispute between decedent Gerald Miletello’s ex-wife

Sandra and widow Pam about who is entitled to the funds in Gerald’s 401(k) 

retirement account. The dispute hinges on the existence and timing of a 

“qualified domestic relations order,” or QDRO, which is controlled by federal 

law. The district court granted summary judgment in favor of Sandra, 

concluding that she had timely received a QDRO. For the reasons set forth 

below, we AFFIRM the district court’s judgment that Sandra is entitled to 

$500,000 of the 401(k) balance.

United States Court of Appeals

Fifth Circuit

FILED

April 16, 2019

Lyle W. Cayce

Clerk

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I. Background

A. The ERISA Regulatory Scheme

The Employee Retirement Income Security Act of 1974 (“ERISA”) is a 

comprehensive federal statute that regulates employee benefit plans. Boggs v. 

Boggs, 520 U.S. 833, 841 (1997). It covers defined contribution plans like 

401(k) accounts. See LaRue v. DeWolff, Boberg & Assocs., Inc., 552 U.S. 248, 

250 (2008). ERISA generally prohibits the assignment or alienation of 

employee benefits under covered plans. 29 U.S.C. § 1056(d)(1). It also 

preempts state laws that “relate to” employee benefit plans. Id. § 1144(a).

But those prohibitions do not apply in the case of a QDRO. Id.

§§ 1056(d)(3)(A), 1144(b)(7). A QDRO is a type of domestic relations order, or 

DRO. A DRO “is any judgment, decree, or order that concerns ‘the provision 

of child support, alimony payments, or marital property rights to a spouse, 

former spouse, child, or other dependent of a participant’ and is ‘made 

pursuant to a State domestic relations law (including a community property 

law).’” Boggs, 520 U.S. at 846 (quoting 29 U.S.C. § 1056(d)(3)(B)(ii)). A QDRO, 

in turn, “is a type of domestic relations order that creates or recognizes an 

alternate payee’s right to, or assigns to an alternate payee the right to, a 

portion of the benefits payable with respect to a participant under a plan.” 

Boggs, 520 U.S. at 846 (citing § 1056(d)(3)(B)(i)). Under a QDRO, the alternate 

payee is considered a beneficiary of the relevant plan. 29 U.S.C. 

§ 1056(d)(3)(J). The “alternate payee” may be a “spouse, former spouse, child, 

or other dependent of a participant.” Id. § 1056(d)(3)(K).

A DRO must satisfy certain requirements to be a QDRO. Boggs, 520 U.S. 

at 846; 29 U.S.C. § 1056(d)(3)(B)–(D). ERISA states:

During any period in which the issue of whether a 

[DRO] is a [QDRO] is being determined (by the plan 

administrator, by a court of competent jurisdiction, or 

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otherwise), the plan administrator shall separately 

account for the amounts (hereinafter . . . the 

“segregated amounts”) which would have been payable 

to the alternate payee during such period if the order 

had been determined to be a [QDRO].

29 U.S.C. § 1056(d)(3)(H)(i). ERISA provides an eighteen-month period for 

determining whether a DRO is a QDRO. Id. § 1056(d)(3)(H)(i)–(v). The 

eighteen-month period “begin[s] with the date on which the first payment 

would be required to be made under the [DRO].” Id. § 1056(d)(3)(H)(v). If 

during that period, the DRO is determined to be a QDRO, the plan 

administrator must pay the segregated amounts to the person entitled to them 

under the QDRO. Id. § 1056(d)(3)(H)(ii). But if (1) the DRO is determined to 

not be a QDRO, or (2) the issue is unresolved by the time the eighteen-month 

period expires, the plan administrator must pay the segregated amounts to the 

person “who would have been entitled to [them] if there had been no order.” 

Id. § 1056(d)(3)(H)(iii). Finally, if a DRO is determined to be a QDRO after the 

eighteen-month period has expired, such a determination “shall be applied 

prospectively only.” Id. § 1056(d)(3)(H)(iv).

B. Factual Background

Gerald Miletello and Appellee Sandra Bellgard Miletello were married. 

Gerald participated in a 401(k) plan set up and administered by Appellee RMR 

Mechanical, Inc. (“RMR”). He designated Sandra as the beneficiary of the 

Plan. 

Sandra and Gerald divorced on January 21, 2014. Gerald married 

Appellant Pam Miletello four months later, in May 2014. As part of the 

divorce, Sandra and Gerald agreed to a community property settlement (the 

“Divorce Settlement”). The Divorce Settlement awarded $500,000 of the funds 

in the 401(k), or the balance of the 401(k) if it was less than $500,000, to 

Sandra. Gerald and Sandra executed the Divorce Settlement on April 20, 2015, 

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and May 4, 2015, respectively. 

Gerald died in a plane crash on October 26, 2015. Shortly thereafter, on 

October 28, 2015, the state court entered a judgment of partition incorporating 

the terms of the Divorce Settlement into the divorce decree.

On November 22, 2016, Pam sued in federal court to claim the 401(k) 

funds as Gerald’s surviving spouse. The court later granted RMR’s motion to 

deposit the disputed funds into the court registry pending resolution of this 

dispute.

On January 18, 2017, the state court entered a QDRO pursuant to the 

Divorce Settlement. The QDRO granted Sandra $500,000 of the 401(k) funds. 

On August 1, 2017, the state court issued an “Amended QDRO” providing that 

it “shall have retroactive effect and be a nunc pro tunc order with an effective 

date of May 4, 2015,” the day the Divorce Settlement was executed.

Pam and Sandra filed cross-motions for summary judgment. The district 

court entered summary judgment for Sandra. Pam now appeals.

II. Standard of Review

We review a district court’s grant of summary judgment de novo. 

Martinez v. Tex. Workforce Comm’n-Civil Rights Div., 775 F.3d 685, 687 (5th 

Cir. 2014). In so doing, “[w]e view all facts and evidence in the light most 

favorable to the non-moving party.” Ferraro v. Liberty Mut. Fire Ins. Co., 796 

F.3d 529, 531 (5th Cir. 2015). In the absence of any genuine dispute of material 

fact, the movant is entitled to prevail if she proves that she is correct as a 

matter of law. FED. R. CIV. P. 56(a).

III. Discussion

The core question in this case is whether Sandra timely obtained a 

QDRO. Pam argues that Sandra cannot claim any 401(k) funds because she 

did not receive a QDRO within eighteen months of the October 28, 2015, 

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judgment of partition—the event that Pam says starts the clock for 

determining whether a DRO is a QDRO. See 29 U.S.C. § 1056(d)(3)(H)(i)–(v).1 

Even if we assume Pam is correct that the eighteen-month window began on 

that date, Sandra received a QDRO within that time frame. Though the 

October 2015 judgment of partition was not a QDRO for technical reasons,2 it 

explicitly contemplated Sandra’s later seeking a QDRO to receive the 401(k) 

funds. She obtained that QDRO on January 18, 2017. Even under Pam’s 

proposed starting date, Sandra timely received a QDRO.

Pam incorrectly asserts that the January 18, 2017 QDRO cannot be 

effective because it post-dates Gerald’s death. She relies on Rivers v. Central

& South West Corp., 186 F.3d 681 (5th Cir. 1999), in support of her argument.

Rivers had very different facts from those here. There, a husband and wife 

were married while the husband earned a pension at a company. Id. at 682. 

They divorced more than a decade before he retired. Id. Their divorce 

settlement did not address his pension. Id. He remarried while still earning 

a pension. Id. He retired, received payments under the pension, and died 

years later. Id. His ex-wife requested a QDRO a decade after he died. Id. We 

affirmed summary judgment against her, concluding that she had “failed to 

protect her rights . . . by neglecting to obtain a QDRO” before her ex-husband 

retired. Id. at 683.

Since Rivers was decided, Congress has modified ERISA to make “clear 

that a QDRO will not fail solely because of the time at which it [was] issued.” 

 

1 The statute provides that a court of competent jurisdiction may determine whether 

a DRO is a QDRO. Id. § 1056(d)(3)(H)(i). But here, the Plan states that payment under a 

DRO will occur after the DRO “is accepted as a QDRO by the Plan Administrator.”

2 The judgment of partition did not contain “the last known mailing address (if any) 

of the participant and the name and mailing address of each alternate payee covered by the 

order.” See id. § 1056(d)(3)(C)(i).

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Yale-New Haven Hosp. v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) (citing 

Pension Protection Act of 2006, Pub. L. No. 109-280, § 1001, 120 Stat. 780 

(2006)); see also 29 C.F.R. § 2530.206(c)(2) (stating that an “order does not fail 

to be treated as a QDRO solely because it is issued after the death of the 

Participant . . . even if no order [was] issued before the Participant’s death”).3 

“The QDRO provisions of ERISA do not suggest that [the former spouse] has 

no interest in the plans until she obtains a QDRO, they merely prevent her 

from enforcing her interest until the QDRO is obtained.” Nicholls, 788 F.3d at 

86 (alteration in original) (quoting In re Gendreau, 122 F.3d 815, 818 (9th Cir.

1997) (emphasis omitted)). We thus reject Pam’s argument that the January 

18, 2017 QDRO is insufficient.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s judgment 

awarding $500,000 of the 401(k) funds to Sandra.4

 

3 We need not decide whether this legislation and regulation abrogate Rivers. The 

facts there are so egregious as to be different from this case.

4 In passing, Sandra argues she is entitled to the entire 401(k). A party who desires 

greater relief than what the district court awards must appeal or cross-appeal the district 

court’s order. See Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 667–68 (5th Cir. 1983). 

Sandra did not cross-appeal, so we do not consider her argument.

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